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Swap Meet: Introducing the Framers to Nader’S Traders Through Porter V Cornell Law Review Volume 93 Article 12 Issue 6 September 2008 Swap Meet: Introducing the Framers to Nader’s Traders through Porter v. Bowen Eric J. Finkelstein Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Eric J. Finkelstein, Swap Meet: Introducing the Framers to Nader’s Traders through Porter v. Bowen, 93 Cornell L. Rev. 1211 (2008) Available at: http://scholarship.law.cornell.edu/clr/vol93/iss6/12 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE SWAP MEET: INTRODUCING THE FRAMERS TO NADER'S TRADERS THROUGH PORTER V. BOWEN Eric j Finkelsteint INTRODUCTION ................................................. 1212 I. AN OVERVIEW OF VOTE SWAPPING ........................ 1214 A. Vote Swapping Generally ........................... 1214 B. Vote Buying and Selling ............................ 1216 C. Vote Pairing in Politics ............................. 1218 II. PORTER V. BOWEN ....................................... 1220 A. Factual and Procedural Background ................ 1220 B. Vote Swapping and the First Amendment ........... 1221 C. The Legality of Secretary Jones's Actions ........... 1222 D. The Ninth Circuit's Discussion of the Electoral C ollege ............................................. 1224 III. WOULD THE FRAMERS HAVE APPROVED OF VOTE SWAPPING? ............................................... 1224 A. Historical Development of the Electoral College System .............................................. 1224 B. The Original Goal or Ideology Behind the Electoral C ollege ............................................. 1227 1. Arguments that the Original Goal Was to Foster Direct Election by the People ....................... 1228 2. Arguments that the Original Goal Was to Appoint Independent Electors .............................. 1229 3. Arguments that the Electoral College was a Compromise, Intended to Evolve .................... 1230 4. The Electoral College Was Most Likely a Compromise ...................................... 1232 C. Where Does Vote Swapping Fit In? ................. 1232 1. If the OriginalIdeology Behind the Electoral College Were Direct Election by the People .................. 1233 t B.S., Industrial and Labor Relations, Cornell University, 2006;J.D. Candidate, Cor- nell Law School, 2009; Executive Editor, Cornell Law Review, Volume 94. The author would like to thank Professor Michael Kang, Jonah Fecteau, Emily Green, Brendan Mahan, Ashley Miller, Michael Page, Jennifer Roberts, Owen Roth, Kate Rykken, and Michael Zuckerman for their comments, Sue Pado for her help, and his family and friends for their support. 1211 1212 CORNELL LAW REVIEW [Vol. 93:1211 2. If the Original Goal Were to have Independent Electors Make the Choice .......................... 1234 3. If the Electoral College Were Simply a Compromise.... 1235 D. Considering Counterarguments ..................... 1236 1. Originalists Should Look to Ideology of the Framers, Not Solely the Constitution's Text .................. 1236 2. The Constitution Does Not Prescribe a Method of Choosing Electors ................................. 1238 3. Any FederalistPurpose the Electoral College May Have Had Is Now Obsolete ........................ 1239 CONCLUSION .................................................... 1241 The electoral college has been entirely divested of its originalfunctions, without a change of a letter of the law. Instead of possessing discretionary powers, it has become as mechanical in its operation as a typewriter. The case is conclusive evidence of the ability of public opinion to modify the actual constitution to any extent required. 1 HENRY JONES FoRDI By engaging with each other to vote strategically, voters are asserting control over presidentialelections---putting it back in the hands of citizens, where it belongs. 2 VOTEPAIR. ORG INTRODUCTION In The Federalist No. 68, Alexander Hamilton opines that "if the manner of [electing the President] be not perfect, it is at least excel- lent. It unites in an eminent degree all the advantages, the union of which was to be desired."'3 Hamilton continues by extolling the vir- tues of what Americans have come to call the Electoral College; a sys- tem he believed the Framers designed to allow the people to "operate in the choice," but also to allow the "immediate election [of the Presi- dent] to be made by men most capable of analizing [sic] the qualities adapted to the station, and acting under circumstances favourable [sic] to deliberation and to a judicious combination of all the reasons and inducements, that were proper to govern their choice."4 Al- though these goals are admirable and thoughtfully constructed, whether the Framers intended the goals to be strict guidelines5 or I HENRY JONES FORD, THE RISE AND GROWTH OF AMERICAN POLITICS: A SKETCH OF CONSTITUTIONAL DEVELOPMENT 161 (Da Capo Press, 2d prtg. 1967) (1898). 2 VotePair.org, Frequently Asked Questions (FAQs), http://www.votepair.org/faq. php (last visited July 31, 2008). 3 THE FEDERALIST No. 68, at 363 (Alexander Hamilton) (J.R. Pole ed., 2005). 4 Id. 5 See ROBERT W. BENNETT, TAMING THE ELECTORAL COLLEGE 15 (2006) ("[T]he elec- tors were meant basically to be independent decision makers rising above political consid- 2008] SWAP MIEET 1213 merely starting points from which the infant United States could evolve is unclear.6 Though many have attempted to answer this ques- tion over the years7-mostly in discussions of whether the Electoral College should be abolished altogether-the purpose of the Electoral College has again become relevant, but for a wholly different reason. The Internet has had a profound effect on the electoral process in the United States, from spreading a candidate's message8 to fun- draising from the masses.9 But in no way has the Internet threatened to affect the outcome of an election so directly as it has through vote swapping, 10 where a voter who believes a presidential candidate will win her state "swaps" votes with a voter who supports a third-party can- didate in a so-called "swing" state.11 The implication is that the candi- date that both voters want to win-and expect can win-gets a vote where it will make the most difference, while giving a third-party can- didate a vote that both indicates support and helps provide federal funding for future elections.' 2 Several state governments have chal- lenged this procedure, 13 but in August 2007 the United States Court of Appeals for the Ninth Circuit decided in Porter v. Bowen' 4 that vote 5 swapping is a protected activity under the First Amendment.1 The vote-swapping controversy is unlikely to end with Porter v. Bowen. Although other circuits-and potentially the Supreme Court-might adopt the Ninth Circuit's analysis, there is no guaran- tee that they will see vote swapping as a First Amendment question or decide the case in quite the same way.16 Would the Framers-who erations in a search for the best available executive for the nation .... "); Lucius WILMERDING, JR., THE ELECTORAL COLLEGE 22 (1958) ("Without asserting that they were meant to be the automata which they eventually became, mere agents without discretion, we must look upon [the electors] as a medium for ascertaining the public will."). 6 ROBERT M. HARDAWAY, THE ELECTORAL COLLEGE AND THE CONSTITUTION: THE CASE FOR PRESERVING FEDERALISM 85 (1994) ("It was doubtless envisioned that the entire process of electing electors and determining their characteristics would be an evolutionary one."). 7 See LAWRENCE D. LONGLEY & NEAL R. PEIRCE, THE ELECTORAL COLLEGE PRIMER 2000, at 17 (1999) ("A recurring theme in discussions about the electoral college is 'the inten- tions of the founding fathers' concerning the manner of the election of the president."). 8 See Tim Cramm, The Designated Nonpublic Forum: Remedying the Forbes Mistake, 67 ALB. L. REV 89, 113 (2003) ("With the growth of the Internet, fringe candidates have found it much easier to get their messages out to the electorate . .") (citation omitted). 9 See GlenJustice, Kerry Kept Money Coming with Internet as HisA.T.M., N.Y. TIMES, Nov. 6, 2004, at A12. 10 Many have used the terms "vote pairing" or "vote trading" to describe the same phenomenon. For simplicity's sake, I will use only the term "vote swapping" in this Note. 11 SeeJohn M. Rushing, Vote Swapping and Free Speech: Voice, Politics, and Choice, 7 TEX. F. ON C.L. & C.R. 73, 74 (2002). 12 See id. 13 See infta Part 11. 14 496 F.3d 1009 (9th Cir. 2007). 15 See id. at 1027. 16 For example, a court could attempt to decide a vote swapping case analogously to MGM v. Grokster, 545 U.S. 913 (2005), in which the Supreme Court said that "one who 1214 CORNELL LAW REVIEW [Vol. 93:1211 could not have contemplated the advent of the Internet-have ap- proved of the use of vote swapping in presidential elections? An an- swer could go a long way toward creating a consensus on this critical issue 17 because the Framers' intent should be a main concern in con- sidering constitutional questions of this nature.18 This Note argues that regardless of the Framers' original under- standing of the Electoral College, they would approve of Internet vote swapping today. Part I of this Note examines the growth and develop- ment of vote swapping over the last decade. Part I analyzes
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